F I L E D

United States Court of Appeals

Tenth Circuit

OCT 7 1998

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK FISHER
Clerk

BARBARA SCHWARZ,
Plaintiff-Appellant,
v.
NATIONAL ARCHIVES &
RECORDS ADMINISTRATION,

No. 98-4070
(D.C. No. 97-CV-816-K)
(Utah)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Barbara Schwarz filed this action against the National Archives and
Records Administration (NARA) and the Information Security Oversight Office
(ISOO) under the Freedom of Information Act (FOIA), 5 U.S.C. 552, seeking
all records concerning herself, her husband, Mark Rathbun, and a number of other
individuals. The district court granted summary judgment for defendants. We
affirm.
Ms. Schwarzs FOIA requests for information were received by the director
of the ISOO, Steven Garfinkel. The ISOO searched its files and Mr. Garfinkel
reported to Ms. Schwarz that the only records found pertaining to her requests
were the correspondence from her concerning those requests. Ms. Schwarz asked
that Mr. Garfinkel provide an affidavit from the individuals who conducted the
search and Mr. Garfinkel refused.
Ms. Schwarz appeared pro se in the district court, alleging that the ISOO
did not respond to her requests in a timely manner, that the ISOO lied when it
stated it had no other records responding to her requests, and that the ISOO acted
in bad faith. In response, Mr. Garfinkel provided an affidavit detailing the
ISOOs search. The district court acknowledged that Mr. Garfinkels affidavit
was not entirely clear on the time periods during which the ISOO searched, but
the court construed the affidavit as meaning that all relevant time periods were
searched. Rec., vol. I, doc. 28. The district court granted defendants motion
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for summary judgment. Ms. Schwarz argues on appeal that Mr. Garfinkels
affidavit was inadequate to show a reasonable search was conducted; that she
should be awarded attorneys fees; that the district court judge was biased; and
that the federal government was plotting a conspiracy against her.
On appeal from summary judgment, we view the record in the light most
favorable to the FOIA requester. Miller v. United States Dept of State, 779 F.2d
1378, 1382 (8th Cir. 1985). In two cases involving our same Ms. Schwarz, we
held that summary judgment is available to an FOIA defendant when the agency
offers adequate affidavits establishing that it has complied with its FOIA
obligations. Schwarz v. Federal Bureau of Investigation, No. 98-4036, 1998 WL
667643, at *1 (10th Cir. Sept. 17, 1995); Schwarz v. Interpol, Nos. 94-4111, 944142, 1995 WL 94664, at *1 (10th Cir. Feb. 28, 1995) (citing Miller, 779 F.2d at
1382-83). To prove the reasonableness of its search, the agency affidavits must
be relatively detailed, nonconclusory and submitted in good faith. Miller, 779
F.2d at 1383. The defendant agency needs to demonstrate only that it performed
a document search reasonably calculated to uncover all relevant documents.
Weisberg v. United States Dept of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
The burden then shifts to the nonmoving party who must provide either evidence
to contradict the moving party or evidence of bad faith. Schwarz v. Interpol,
1995 WL 94664 at *1. Unsupported allegations are not enough to satisfy this
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burden. Id.
In the present case, the ISOO offered Mr. Garfinkels affidavit that the
ISOO conducted a reasonable search of its files and found no other records
relevant to Ms. Schwarzs requests. Mr. Garfinkels affidavit declared that a
thorough search of all the records at the ISOO had been conducted and included a
detailed listing of the files searched. Aplee. Supp. App. at 6-8. The burden then
shifted to Ms. Schwarz to contradict the ISOOs evidence. Ms. Schwarz offered
as evidence the facts that the ISOO could not find any other records responsive to
her requests and that Mr. Garfinkels affidavit did not specifically cite to her
designated time frame. These facts are not sufficient to contradict the
reasonableness of the ISOOs search. Nor are they sufficient to prove bad faith.
An agency cannot be required to produce records when none exist. Miller, 779
F.2d at 1384-85. The district court found Mr. Garfinkels affidavit sufficient to
cover a search of all time periods, and we believe this is a reasonable construction
of the affidavit. The record contains no reason to doubt that the extensive files
searched constituted a reasonable, if not exhaustive, attempt to uncover relevant
documents. We have carefully reviewed the record on appeal and Ms. Schwarzs
brief, and we conclude that the district court did not err in granting summary
judgment for defendants.
We also conclude that the district court did not abuse its discretion in
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requiring each party to bear its own costs. Reasonable attorneys fees and other
litigation costs under the FOIA are awarded to the prevailing complainant. 5
U.S.C. 552(a)(4)(E); see also Miller, 779 F.2d at 1389. Ms. Schwarz is thus not
eligible for costs or fees. 1
Summary judgment is AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour
Chief Judge

We note that Ms. Schwarz has failed to allege any factual basis to support
her charges of district court bias or governmental conspiracy, and we therefore
reject these claims summarily.
1

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